Judge Lets Gay Marriages Continue in Wisconsin

Gay couples in Wisconsin convinced some county clerks to give them licenses Monday so they could wed before an expected hold on a judge’s decision declaring the state’s gay marriage ban unconstitutional.

Other clerks, however, refused to act without an order from the court or state, which is appealing the judge’s decision.

Hundreds of couples married over the weekend in Milwaukee and Madison after county clerks in the state’s two largest cities extended office hours following the federal judge’s ruling Friday. Couples living elsewhere had to wait until Monday to get licenses because Wisconsin requires residents to apply in the counties where they live.

Dozens of couples were initially refused licenses in Appleton, Green Bay and elsewhere while county clerks in those communities weighed what to do and sought advice from the Wisconsin Vital Records Office, which keeps marriage records. Nearly 100 people at the Outagamie County Clerk’s office in Appleton objected when told they could not apply for licenses.

"We gathered in hopes of getting a license. We were told that would not be happening. We did tell them we weren’t leaving until licenses were issued," said Kathy Flores, 47, of Appleton, who sought a license to marry her partner, Ann Kendzierski.

Soon after, Outagamie County attorney Joe Guidote told couples that he had advised Clerk Lori O’Bright to accept applications for licenses, although she would not waive Wisconsin’s five-day waiting period, as clerks in Milwaukee and Madison did. Flores said later that she knew one couple who received a waiver because a parent was very ill.

Brown County Clerk Sandy Juno said she decided to go ahead and issue licenses to about 10 couples at her Green Bay office after failing to reach anyone in the Wisconsin Vital Records Office. She said she explained to couples the work would stop as soon as a court put the judge’s decision on hold.

"My staff will be missing their lunch hour to provide as much service as we can to get couples processed," Juno said.

Jennifer Miller, a spokeswoman for the Department of Health Services, which oversees vital statistics, said the agency would not issue any guidance until it received directions from Republican Attorney General J.B. Van Hollen.

U.S. District Judge Barbara Crabb’s decision has created some confusion among clerks because she declared the ban unconstitutional but also said she wanted the American Civil Liberties Union to tell her exactly what it wanted her to block in the gay marriage law. The ACLU filed a lawsuit challenging the ban in January on behalf of eight gay couples.

Crabb said Monday that she would not act on Van Hollen’s request for an emergency stay until after the ACLU responds. Van Hollen also has appealed Crabb’s decision to the 7th U.S. Circuit Court of Appeals and asked it for a stay.

La Crosse County Clerk Ginny Dankmeyer said "phones have been ringing off the hook," but that she had been told by a county attorney not to issue licenses until after Crabb’s June 16 deadline for the ACLU to respond. St. Croix County deputy clerk Cheryl Harmon said her office in Hudson had been told the same thing by its attorney and also was waiting.

Other counties joined Milwaukee and Dane counties, which issued 283 marriage licenses to same-sex couples on Friday and Saturday. The Rock County clerk’s office in Janesville said it issued two licenses before noon on Monday. Kenosha County Clerk Mary T. Schuch-Krebs said she gave a license to one couple who told her they planned to marry that night.

Schuch-Krebs said she considered Crabb’s ruling enough guidance.

"I don’t see anything that tells me otherwise. What law would I cite to tell them they couldn’t marry?" she said.

Waukesha County Clerk Kathleen Novack said her office west of Milwaukee began accepting applications for licenses about 9:30 a.m. Monday after she talked to a county attorney, saw what other counties were doing and spoke with waiting couples.

"We want to make sure they’re cautioned to a certain degree that they may have some legal issues ahead of them, but we decided that, well, let’s just say that we have a lot of happy people here," said Novack, who issued about a half-dozen licenses in the first half-hour and expected to reach "the 20s or 30s" by the end of the day.

University of Richmond law professor Carl Tobias said Saturday that he expected Van Hollen to receive a stay, which could throw the marriages taking place into question. But, he said, he believes courts will eventually recognize them.

He noted that more than 1,000 couples married in Utah before a stay was issued there, and a judge recently said those marriages were valid. That decision, like others related to gay marriage, has been appealed.

Given events around the nation, Tobias said he expects the U.S. Supreme Court to weigh in on the issue next year.

"I’m cautiously optimistic that everything will be fine for those couples, but we just don’t know right now," Tobias said. "It’s a terrible thing to have to say that, but it’s where we are."

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